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ArtI.S5.C2.1 Congressional Proceedings and the Rulemaking Clause

Article I, Section 5, Clause 2:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

The Constitution’s Rulemaking Clause authorizes the House of Representatives and Senate to establish rules by which each will conduct its own business. Describing the Senate’s authority under the Rulemaking Clause “to determine how and when to conduct its business” as broad, the Court noted in National Labor Relations Board v. Canning:

The Constitution explicitly empowers the Senate to ‘determine the Rules of its Proceedings.’ And we have held that ‘all matters of method are open to the determination’ of the Senate, as long as there is ‘a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained’ and the rule does not ‘ignore constitutional restraints or violate fundamental rights.'1

The House and Senate’s authority to establish rules is ongoing. As the Supreme Court observed in United States v. Ballin: “The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.” 2

Under Ballin, the House and Senate may exercise their rulemaking authorities at their discretion provided there is (1) “a reasonable relation” between the rule’s method and the desired result, and (2) the rule does not “ignore constitutional restraints or violate fundamental rights.” 3 Case law on when a House or Senate rule transgresses this standard is limited. In the 1932 case United States v. Smith,4 the Court held that the Senate’s rules did not allow the Senate to deprive an appointee of his title to federal office after he had been confirmed and taken the oath of office. In reaching this decision, the Court construed the Senate’s rules and held against the Senate, stating: “In deciding the issue, the Court must give great weight to the Senate’s present construction of its own rules; but so far, at least as that construction was arrived at subsequent to the events in controversy, we are not concluded by it.” 5

In the 1949 case Christoffel v. United States,6 a sharply divided Court upset a perjury conviction in federal court of a witness who had denied under oath before a House committee that he was affiliated with Communist programs. Although the committee had a quoroum when the hearing commenced, at the time the witness allegedly perjured himself, some of the Members had stepped away from the hearing with the result that the number of Members in attendance was less than the number necessary to establish a quorum. Consequently, the Court reversed the lower court decision on the grounds that the witness’s testimony had not been before a “competent tribunal” under the District of Columbia Code.7 Writing for the Court, Justice Frank Murphy stated:

An element of the crime charged in the instant indictment is the presence of a competent tribunal, and the trial court properly so instructed the jury. . . . [T]o charge, however, that such a requirement is satisfied by a finding that there was a majority present two or three hours before the defendant offered his testimony, in the face of evidence indicating the contrary, is to rule as a matter of law that a quorum need not be present when the offense is committed. . . . A tribunal that is not competent is no tribunal, and it is unthinkable that such a body can be the instrument of criminal conviction.8

In a dissent joined by three other Justices, Justice Robert H. Jackson argued that the Court’s ruling had invalidated the House’s rules and practices when it should have deferred to them and upheld the lower court decision. He stated: “The House has adopted the rule and practice that a quorum once established is presumed to continue unless and until a point of no quorum is raised. By this decision, the Court, in effect, invalidates that rule despite the limitations consistently imposed upon courts where such an issue is tendered.” 9 By questioning the legitimacy of the House’s rule and practice that “a quorum once established is presumed to continue” unless challenged, the Court, Justice Jackson suggested, risked undermining other actions taken by the House consistent with its rules.10 Justice Jackson noted: “Since the constitutional provision governing the House itself also requires a quorum before that body can do business, this raises the question whether the decision now announced will also apply to itself. If it does, it could have the effect of invalidating any action taken or legislation passed without a record vote, which represents a large proportion of the business done by both House and Senate.” 11

NLRB v. Canning, 573 U.S. 513, 564–64 (2014) (quoting United States v. Ballin, 144 U.S. 1, 5 (1892). back
United States v. Ballin, 144 U.S. 1, 5 (1892). In McGrain v. Daugherty, the Court observed that the Senate is “a continuing body.” McGrain v. Daugherty, 273 U.S. 135, 181–82 (1927). Hence its rules remain in force from Congress to Congress except as they are changed from time to time, whereas those of the House are readopted at the outset of each new Congress. Id. See also Marshall Field & Co. v. Clark, 143 U.S. 649, 672 (1892). back
Ballin, 144 U.S. at 5. back
286 U.S. 6 (1932). back
Id. at 6. back
338 U.S. 84 (1949). back
Id. at 87–90. back
Id. at 89–90. back
338 U.S. at 95. In her concurrence denying certiorari in Schock v. United States, No. 18-406, slip op. at 1 (U.S. Feb. 19, 2019), Justice Sonia Sotomayor noted that the Court has not resolved whether the separation of powers doctrine is violated by a federal court interpreting “internal rules adopted by the House of Representatives to govern its own Members.” She stated: “Although this question does not arise frequently—presumably because criminal charges against Members of Congress are rare—the sensitive separation-of-powers questions that such prosecutions raise ought to be handled uniformly.” Id. back
Id. back
Id. at 93. back